October 18, 2015
Al Haymon won a round in federal court in Los Angeles on Friday as he was successful in dismissing an antitrust lawsuit filed by Top Rank Boxing. The court gave Top Rank the ability to amend their complaint by October 30, 2015.
The motion to dismiss Top Rank’s First Amended Complaint by Al Haymon, et al. was heard without oral argument by the court.
The court dismissed all of three antitrust claims brought by Top Rank against Al Haymon citing that it failed to allege “antitrust injury.” The order states that it specifically failed to allege injury “to itself or to competition.”
Top Rank accused Al Haymon of 3 primary issues in its antitrust claim:
-Tie Out Contracts and “Sham Promoters”
-Predatory “Payola” Practices
Per the Court order:
…as the Haymon Defendants point out, Top Rank has failed to allege how it has been injured by the alleged conduct. Indeed, it has not identified a single bout that it has attempted to promote but was precluded from promoting by the Haymon Defendants, a single venue from which it has been blocked, or a single network that has refused to broadcast a fight promoted by Top Rank. Top Rank correctly argues that competitors who are “frozen out” of a market by an antitrust violation have suffered antitrust injury and possess antitrust standing. However, Top Rank has failed to allege any facts demonstrating that it has actually been “frozen out” by any of the Haymon Defendants’ conduct.
Notably, the court dismissed defendant Waddell & Reed Financial, Inc., Waddell & Reed Investment Management Company, Ivy Investment Management Company and Media Group Holdings (“Waddell Defendants”) without the ability for Top Rank to amend their complaint as the Court deemed it would be “futile.” Waddell was the alleged financial investor and adviser for Haymon et al. as they provided the money for PBC. Despite its liberal policy favoring amendments, the Court noted that Top Rank has had the opportunity to amend its pleading and finds no amendment would persuade the Court that it has a claim against Waddell.
To survive a motion to dismiss, Top Rank had to allege market power or economic power in the relevant markets by Haymon, et al. Top Rank identified the relevant markets as 1) the market for managing Championship-Caliber Boxers in the U.S. and 2) the market for the promotion of Championship-Caliber Boxers in the U.S. Although the Court noted that these market definitions may not defeat a summary judgment motion, it may surpass a motion to dismiss.
The Court indicated that while Top Rank may define the relevant markets, it failed to adequately allege market power or economic power within those markets. Specifically, the court notes that Top Rank does not provide “facts or figures” concerning Championship-Caliber Boxers (i.e, how many there are, how many promoters, promote them, how many managers manage them, etc.). The court also takes issue with Top Rank’s allegation that Haymon’s market share is greater than 50%. Here, the court finds no factual evidence of how Top Rank arrived at the figure and whether it is limited to the management of “Championship-Caliber Boxers.”
As a result of its inability to show that Haymon, et al. possessed market or economic power in the management market, it could not show that it tied together the sale of two distinct services of managing and promoting Championship-Caliber boxers. Although Top Rank argued that the illegal tying arrangements may be in “consent” clauses in the Haymon contracts, Top Rank did not provide any factual allegations showing such clauses in fighter contracts which purported that a fighter was bound by the same manager and promoter.
In addition to the antitrust claims under the Sherman Act, the court dismissed a claim under the Clayton Act for injunctive relief due to the fact there was no showing of claims under the Sherman Act. In addition, state law claims under the California law were deferred if and when Top Rank amends its complaint. If it does not, the court will not rule on the state law claims.
It’s interesting to note that Top Rank had sought the deposition of an officer from the Waddell Defendants prior to the ruling. A deposition was noted for October 7th according to the court record but we assume that did not happen pending the ruling. It was likely the hope that Top Rank could establish a link between the Waddell Defendants and its case. However, with the court ruling, Top Rank would have to appeal the order for them to bring back Waddell into the case. Look for Top Rank to file an Amended Complaint with specific allegations. Despite the court dismissal, it invites Top Rank another shot at filing a complaint. This might be interesting foreshadowing for some of the issues in the Golden Boy-Al Haymon antitrust case ongoing in Los Angeles. Essentially, the court did not find Top Rank established sufficient facts that Al Haymon, et al. had market power/control over the relevant markets. One of the arguments here is that this information might be obtained through discovery (i.e., contracts, venue contracts, etc.). The court seemed definite that there must be some concrete factual allegations for Top Rank antitrust claims to go forward. MMA Payout will keep you posted.
October 16, 2015
October 15, 2015
A Nevada court granted in part and denied in part a Motion to Dismiss brought by Wanderlei Silva against the UFC. The lawsuit was brought by the UFC suing Silva for Defamation and Business Disparagement. The case will go forward.
The hearing was moved up from its original hearing date of November 3rd. Attorneys from the UFC sought to strike certain exhibits from the UFC motion to dismiss which included articles from MMA web sites that were attached to prove that Silva’s statements made through Facebook and YouTube were true.
This summer, the UFC filed a defamation lawsuit against Silver over statements he made alleging the UFC of “fight fixing.”
The court dismissed the UFC’s cause of action for business disparagement. However, it granted the UFC the opportunity to amend the complaint. Thus, while it’s dismissed you may look for the UFC to file an amended complaint.
In addition, Silva’s attorneys argued that the UFC’s lawsuit was in violation of Nevada’s Anti-SLAPP statute which precludes lawsuits that seek to chill free speech on matters of public concern. The court denied the Anti-SLAPP motion per stating that Silva’s statements on fight fixing “were not directly connected to public matters” which include the ongoing antitrust lawsuit and his own NAC lawsuit that is being appealed to the Nevada State Supreme Court.
ESPN also reports that a part of the lawsuit related to monetary damages alleged by Zuffa. Per ESPN’s Brett Okamoto, Silva’s attorneys argued that his comments about “fight fixing” were in good faith and broad encompassing matters like “asking an injured athlete to compete or ignoring drug test results.” The court rejected the arguments citing the “plain English” definition of “fight fixing.”
We have a comprehensive breakdown of the Motion to Dismiss here. It appears as though Silva’s legal team earned a minor win at the hearing in dismissing a claim. However, look for the UFC to amend its complaint. It’s interesting that the court denied Silva’s Anti-SLAPP claim citing that the statements were not directly connected to public matters. One would think that the issues (“fixing fights” and health of fighters in a sport where consumers spend money) would be related to a public concern.
The case will now proceed with Silva’s team likely answering an amended complaint and then we will get to the discovery phase. The marquee event will be the anticipated deposition of Silva.
October 13, 2015
The UFC and NFL filed take down notices for copyright infringement against the twitter accounts for the sports web site Deadspin and the Vox Media-owned SB Nation Gif account per CNN Money. As of Tuesday morning, the Deadspin account had returned to twitter but the SB Nation Gif account remains suspended.
THIRD UPDATE: The UFC only filed a take down notice against Deadspin and not the SB Nation Gif account per NY Times.
SECOND UPDATE: Per Forbes.com, the UFC specifically took issue with a Deadspin tweet related to Ronda Rousey’s last fight. One could surmise they played the entire fight from UFC 190 or at least the KO.
UPDATED: For those wondering, takedown notices are governed under Title II, Section 512 of the DMCA which is found here.
Takedown notices under the Digital Millennium Copyright Act (DMCA) were issued to both Deadspin and SB Nation for alleged violations of copyright. Both twitter accounts routinely use GIFs from the NFL and other sports. Per CNN Money, there were 33 pages of notices filed by NetResult, an Internet copyright monitoring company acting on behalf of the NFL and UFC.
Engadget reports that the takedown list request includes a number of video files from Deadspin’s main account and @SBNationGif. The requests will be submitted to the Chilling Effects Clearinghouse – an independent 3rd party research project studying cease and desist letters concerning online content.
Per ESPN, the NFL and Twitter announced a two-year content and advertising deal that would send more NFL video highlights and pictures from games through Twitter.
Although maybe not a direct correlation, Deadspin has published critical pieces of both the NFL and UFC. Recently a Josh Gross article about Vitor Belfort received much praise for his investigation that the UFC allowed Belfort to fight despite troubling drug test results pre-fight. But the article received a scant reply from the UFC.
The take down of both twitter accounts were interesting for the sheer fact of the multitude of followers that use each for news/entertainment and thus it was a noticeable loss on twitter. It could be just coincidence that Deadspin have published critical articles about the UFC and NFL. You may also say the same for SB Nation although the use of gifs may be the key to the take downs. Notably, the UFC has cracked down on gifs of fights in the past. At a time when the ownership of new technology is still somewhat unsettled, these take downs represent the progression of protection of league rights in media. MMA Payout will continue to follow.
October 6, 2015
Bloody Elbow reports that Wanderlei Silva has filed a motion to dismiss the UFC’s defamation lawsuit citing to dismiss the Complaint for failing to state a claim upon which relief can be granted, a “litigation privilege” and Nevada’s Anti-Slapp Statute. The hearing is set for November 3rd in state court in Nevada.
The motion to dismiss can be found here.
The lawsuit stems from two Facebook posts and a YouTube video made by the former UFC fighter claiming that the UFC fixes fights. The UFC sued Silva claiming Defamation Per Se and Business Disparagement.
Silva’s lawyers argue that the UFC cannot show damages from his comments or disprove the comments were false. They argue that the cause of action for Defamation Per Se relates to individuals and not entities. Citing that the claim relates to personal reputation and not business reputation, Silva’s lawyers argue that the claim fails.
Next, Silva’s lawyers also state that the UFC fail to state a claim for business disparagement as they fail to properly allege malice. The elements of business disparagement in Nevada are: 1) a false and disparaging statement, 2) the unprivileged publication by the defendant, 3) malice and 4) special damages. In this instance, Silva’s lawyers take issue with the Complaint filed by the UFC stating that Silva “published the false statement with malice…” without further explanation. They also go on to state that the UFC have no facts supporting “Silva published the statement with the intent to cause harm to Zuffa’s pecuniary interests, no facts that allege such pecuniary harm occurred, or facts demonstrating that he knew the statements were false or recklessly disregarded their truth.” Finally, Silva’s lawyers claim that the UFC failed to show that the statements caused any damages.
Silva’s lawyers then claim that Silva’s statements are privileged under the “litigation privilege.” In my prior post about this lawsuit, I stated that Silva could not claim a privilege to his statements. Here, his lawyers state that he is entitled to one based on the fact that “communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged.” Citing the fact that the privilege is deemed broad, Silva’s lawyers state that their client should fit under this umbrella. Here, Silva’s lawyers claim that his statement were made in lieu of the “NSAC Case” in which he brought a lawsuit for judicial review after being fined and banned by the Nevada State Athletic Commission and “the Class Action” lawsuit which is in reference to the Antitrust action brought by former UFC fighters.
Finally, Zuffa’s attorney claim that the lawsuit should be dismissed as it violates Nevada’s Anti-Slapp Statute. SLAPP (strategic lawsuit against public participation) allows those sued in defamation or libel cases the opportunity to get the lawsuits thrown out early unless the plaintiff can show a probability of prevailing. It’s a way of protecting free speech regarding an issue of public concern. The Anti-SLAPP statute has an expedited procedure in which a party may file a motion to dismiss the complaint under the law and treats it as a motion for summary judgment. Essentially, it’s an expedited way to dismiss lawsuits that were brought with an ulterior motive to harass those from speaking out.
While there are some salient points here by Silva’s attorneys they seems to latch onto the salacious, to satiate MMA fans, but the motion should focus on the best arguments for dismissal – the UFC Complaint lacks specificity, they cannot prove damages and the Anti-SLAPP statute. In my opinion, the motion should highlight the argument that the UFC’s Complaint lacks the necessary components necessary for a Complaint. This is highlighted by the inability to show the proximate cause between Silva’s words and damages.
Frankly, Silva’s statements are defamatory. Among his statements, he says that the UFC fixes fights which goes to the heart of the company’s business. However, it seems hard for the UFC to provide necessary evidence that they have or will be damaged as a result of these statements.
Secondly, the “litigation privilege” is not absolute in Nevada. Statements made to the media during litigation are not protected and can form the basis for a defamation claim according to a recent case. In Jacobs v. Adelson, the Nevada Supreme Court noted that the purpose of the litigation privilege is to allow parties to speak freely and openly during litigation without the threat of being sued. But, it only applies during judicial proceedings to statements that relate to the litigation. While Silva’s statements may not have gone directly to the media, there is the implication from the case that defamatory comments made to outside observers of a lawsuit can potentially form the basis for a defamation claim.
Silva’s case presents an interesting scenario since he was involved in the NSAC case but is not a party to the Antitrust lawsuit. While his lawyers inferred that he may become a party and has knowledge of the case, he is not an existing part of the action. Moreover, the statements Silva made that are at issue in the lawsuit occurred at a time when he was not a part of any active lawsuit (the NSAC case was being remanded at the time and he was sued prior to the appeal to the Nevada State Supreme Court).
So, the question is whether the “litigation privilege” extends to statements made outside of a lawsuit and when you are not a party.
The Anti-SLAPP claim is a viable claim brought by Silva’s attorneys. Notably, some states have brought the statute into question as a violation of the constitutional right of due process in that it negates the opportunity for a fair trial due (Washington State recently struck down a similar law). However, Nevada’s law is still in use although lawmakers are seeking to amend it concerned with a similar challenge to the constitutionality of the law. Silva will have to convince a judge that the statements at issue were “a good faith communication” directly connected with a matter of public concern. Sure, we can argue that fighters’ rights may be a matter of public concern but were the statements “a good faith communication.”?
Even if the UFC is concerned with the lack of specificity with a damages claim and/or the causal relationship between Silva’s statements and damages, it may still seek to amend the Complaint. But, based on the motion, look for the UFC to win this round and the case to proceed to the discovery phase.
October 4, 2015
A new wrinkle may surface in the quest to legalize professional MMA in New York. With a new lawsuit filed by the UFC, a preliminary injunction request filed to hold an event this April, a nuanced detail may trip up the legal strategy.
In its new court filings, the UFC indicates that it has licensed with the World Kickboxing Association (“WKA”) to hold the event in April. The WKA is an exempt organization under the Combat Sports Law (“CSL”) which bans the sport in the state. As an exempt organization under the law, it may promote events notwithstanding the law. Basically, it may hold an event in the state despite the ban.
As indicated by Jim Genia, if a law legalizing professional MMA is passed in Albany prior to an anticipated UFC at MSG this April, the UFC may have some issues. The reason being is that if the law banning professional MMA in the state is repealed, the exempt organization carve out allowing organizations, such as the WKA to sanction events will also fall by the waysideIf this happens, the UFC’s event in April may be in trouble since the UFC has stated that it is working with WKA to sanction the event.
The legislative session begins in January and there is no way to know when, or even if, an MMA bill legalizing the sport and/or repealing the ban will ever matriculate its way through the various committees, state senate and eventually to the state Assembly for a vote. If it finds its way to the Governor’s desk for signing, the UFC may have a problem.
There are two big “ifs’ here (among other questions).
- The UFC must pass a hurdle of getting the court to grant its preliminary injunction request. Look for stern opposition from the state of New York and an appeal if it loses. The big news on this, is that if an appeal occurs, there may be a stay in the lawsuit until the appeal is heard. Thus, it would freeze the new lawsuit until resolution from the Court. Something like that could take us past the UFC’s intended April event date.
- If the UFC wins its preliminary injunction (and for some reason there is no appeal and/or resolves in the UFC’s favor), the MMA law in Albany would have to get through before the UFC’s April 23, 2016 date at MSG.
Let’s face it. I don’t bank on a law passing prior to April 23rd based on what we’ve seen in recent years from New York lawmakers. MMA supporters have waited for a law to pass legalizing MMA in the state. The past several years we’ve waited and waited until the final days of the legislative session in June for a vote in the state assembly (the last hurdle before reaching the governor’s desk). Yet, none has occurred. Even if a law is passed this year, I doubt it occurs prior to April’s UFC event.
I would suspect that if the UFC wins its preliminary injunction (and any appeal that might occur), it may ask pro-MMA supporters within the legislature (and its lobbyists) to push an MMA bill, but have it occur after the April event. In the alternative, they could always request the UFC be grandfathered into the MMA law. Essentially, allowing the WKA to sanction the event but after the event, the MMA law would come into effect. This assumes that the legal process is swift, which it is not.
First things first, a court will consider the UFC’s preliminary injunction request and at some point the UFC must win for an April event to happen.
September 30, 2015
The UFC surprised many with another lawsuit in federal court in New York challenging the constitutionality of the state’s ban on professional MMA. This time, the UFC is seeking a preliminary injunction to hold an event in the state this April.
The news of a new lawsuit comes when the original lawsuit is in the Second Circuit Court of Appeals. Paul Clement, the renowned appellate lawyer and former U.S. Solicitor General is representing Zuffa and filed their appeal brief this past August. New York’s response is set for the beginning of November.
But perhaps the road map for the lawsuit filed this week was provided by Judge Kimba Wood, the trial court judge that dismissed Zuffa’s case.
In deciding to dismiss Zuffa’s case, it offered the following in its conclusion (click to enlarge):
The opinion is mere “dicta” meaning that Judge Wood’s suggestion is not law or precedent which others may cite as guiding authority. Yet, it created the opportunity for the UFC to open up another line of action in attempting hold an event in New York.
Unlike the November 2011 lawsuit, the UFC is the only plaintiff. The UFC focuses on the claim that the New York law, the Combative Sport Law (“CSL”), violates due process rights as it is unconstitutionally vague as to its application.
The UFC points out that the CSL exempts “martial arts” from its ban stating that “martial arts shall include any professional match or exhibition sanctioned by any” of the organizations listed in the statute.
It notes in the Complaint that “standing,” the right to bring an action in the court, “could not be clearer.” This directly addresses the previous lawsuit in which Judge Wood determined that there was no standing due to the fact that the UFC had not suffered injury and did not contact a promoter to hold an event in New York. In its Complaint, it now states that it is working with WKA.
Based on setting a UFC event for April 2016, the UFC states that it will lose “millions of dollars in ticket sales.” It also will lose a source of marketing for its UFC-branded gyms in New York, as well as for the DVDs, consumer products, video games and other products that it sells.
Notably, the UFC indicates that it has “lost sponsorships and has suffered reputational damage around the world because of its inability to hold professional MMA events in New York.” It will be interesting to see what evidence it may bring to prove these allegations if it comes to that point.
The UFC Complaint cites the differences from the beginnings of the CSL indicating that the legislature was concerned with “no-holds-barred fighting.” In her opinion Judge Wood states “MMA has changed substantially since the Ban was enacted.” This provides some guidance as to what a court may decide with respect to the CSL.
It’s clear that the roadmap was provided by Judge Wood for this lawsuit with the exception that it has filed the lawsuit in federal court as opposed to state court as suggested in her opinion. The lawsuit is premised upon the determination by the prior court as this filing is tighter and a shorter (only 37 pages as opposed to 100 plus pages) complaint. It appears that there is a better chance for the UFC in this lawsuit although you should expect stiff opposition from New York. The state will likely argue what it did in the prior lawsuit which is that laws need not change over time. And despite the change within the sport of MMA, it will focus on the intent of the law with its primary purpose to ban MMA.
September 30, 2015
The UFC filed its motion for preliminary injunction on Tuesday. It argues that the UFC is likely to prevail on its claim and should be granted the injunction to hold its event at Madison Square Garden this April. Notably, it has already spent a non-refundable $25,000 for the anticipated event in April.
No hearing date has been set and we’ll likely see opposition from New York.
Similar to its complaint filed on Monday, it stresses the contention that the statute banning professional MMA in the state is inherently vague.
“Much of the law’s problems stem from its failure to explain with any reasonable degree of clarity what exactly a “combative sport” is,” reads the moving papers submitted by the UFC. “Rather than define the term expressly, the statue attempts to reverse engineer a definition by exempting from its prohibitions certain sports, including “martial arts.””
Again the UFC stresses its belief that any issues on standing are now answered: “Whatever uncertainty may have existed on the matter in the past, it is now crystal clear that the estate interprets the law to prohibit Plaintiff from doing so.”
The UFC utilizes deposition from the Jones v. Schneiderman lawsuit to provide evidence that even NY officials provided contrary testimony to how they interpreted the statute.
In addition, the UFC notes that it has contracted with the World Kickboxing Organization, an “exempt organization” allowed to hold events in the states. The motion states, “To eliminate any potential concerns about the imminence of its injury, Plaintiff has contracted to host a live professional MMA event sanctioned by an Exempt Organization.”
It also indicates that it has committed $25,000 as a non-refundable deposit and stands to lose millions of dollars in ticket sales and media revenue.
As we’ve learned from previous injunction requests in MMA, there are hurdles the injunction-seeker must prove that “the probability of his prevailing is better than fifty percent.”
- “a likelihood of success on the merits [of the lawsuit],”’
- That it will suffer “irreparable harm” with a preliminary injunction, and
- “that a preliminary injunction is in the public interest.”
We should also note that the UFC also challenges NY Liquor Law as it did in the November 2011 lawsuit as that law mirrors the Combative Sports Law (or “CSL” as it is referred to in the pleadings).
This will be an interesting, and an important injunction for the UFC in its fight to hold an event in New York. I believe that the first element, “likelihood of success on the merits,” is the biggest hurdle for the UFC. Obviously, the monetary investment in holding an event reflects the “irreparable harm.” You can argue the “public interest” element. Despite the ban, and the inability to get a law passed in Albany to legalize MMA, there is still a lot of support for the sport in the state. The “likelihood of success” could be a toss-up and based on the court’s interpretation of the CSL ban.
September 29, 2015
Jon Jones appeared in a Albuquerque, New Mexico courtroom today regarding last April’s hit and run accident which injured a pregnant woman. Jones will not receive any jail time as part of a plea agreement.
Jones agreed to plead guilty to leaving the scene of an accident causing great bodily harm. He will serve community service hours and be placed on 18 months probation. The plea agreement was made in part due to the fact that Jones had no prior felony convictions.
The penalty for Jones’ charge carries a jail sentence of not more than 18 months in jail and/or a $5,000 fine followed by one year on parole. Jones will avoid this if he abides by the terms of the plea deal.
Via the District Attorney News Release:
On September 29, 2015 Jones entered into a Pre-Indictment Plea with the State of New Mexico pleading Guilty to Leaving the Scene of an Accident (Great Bodily Harm), a fourth degree felony offense. He was granted a Conditional Discharge, and ordered to serve a term of up to 18 months on Supervised Probation.
Appearing in court, Jones apologized and stated he accepts full responsibiulity for his actions. Jones was ordered to complete 72 appearances, one for each of the 72 weeks in the 18 month Probation period. Second Judicial District Court Judge Charlie Brown ordered those appearances should be at local martial arts academies, grade schools, and middle schools. There, Jones will speak with Bernalillo County children about the importance of making good choices and how oine wrong decision can ruin everything for which they work so hard.
Jones offered an official statement expressing regret for his actions:
With regards to today’s decision made by the court, I am very happy to now be able to put this incident behind me. My actions have caused pain and inconvenience in the lives of others and for that I am truly sorry and I accept full responsibility. I have been working hard during this time away from my sport to grow and mature as a man and to ensure that nothing like this happens again. I have learned a great deal from this situation and I am determined to emerge a better person because of it. I apologize to those who were affected by my actions in this incident and I am hopeful that I will be given the opportunity to redeem myself in the eyes of the public, my family and friends as well as my supporters. I am not sure what the future holds for me but I plan to continue to do the work needed to be productive and successful in every aspect of my life. “
Dana White was present in the courtroom during the hearing. The UFC offered its own statement (via MMA Fighting) in which it indicated that Jones was still suspended but their law firm would review the plea prior to a possible reinstatement.
The UFC organization is aware that Jon Jones reached a plea agreement with authorities in Albuquerque, New Mexico this morning stemming from charges associated with a motor vehicle accident earlier this year. As a result, UFC, through Las Vegas-based law firm Campbell & Williams, will thoroughly review the agreement before discussing Jones’ possible reinstatement to return to competition.
More information will be made available following completion of this review.
This is likely the best outcome for Jones and the UFC. Jones avoids any jail time (subject to following the terms of the plea agreement) and the UFC will likely reinstate him. With this being Jones’ first offense and no major injuries from the accident, no jail time was a likely result. White being in the courtroom was no surprise. Despite the suspension, Jones is a vital part of the company’s success.
September 28, 2015
The UFC has announced per press release that it is filing a new lawsuit in federal court in New York once again challenging the legislative ban on professional MMA in the state. In a show of confidence, it has also scheduled an event on April 23, 2016 in New York’s Madison Square Garden assuming that the court will grant a preliminary injunction.
Via UFC press release:
“We believe fight fans have waited long enough to experience live UFC events in the state of New York and we are thrilled to announce our first event at Madison Square Garden,” UFC Senior Executive Vice President and Chief Operating Officer Lawrence Epstein said. “Professional MMA is legal around of the world and it is about time New York followed suit.”
In August, UFC filed an appeal in the United States Court of Appeals for the Second Circuit – the federal appellate court with jurisdiction over New York – stating that New York’s prohibition of regulated professional MMA events violates the First Amendment rights of athletes and fans throughout the state.
On September 28, UFC filed a new case in federal court, reiterating its claim that the New York law banning MMA events is unconstitutional. This out-of-date law is too unclear for the public to understand, and has allowed regulators in New York to pick and choose arbitrarily what events they will permit. Events featuring every combat sport except MMA seem to be allowed in New York, though this is not explicitly stated in the law. The statute, and the state’s pattern of enforcing it, violates the Constitution’s prohibition on unconstitutionally vague laws.
Later this week, UFC will ask a federal judge to issue a preliminary injunction against New York state officials enforcing its unconstitutional law. Without such an injunction, the event at Madison Square Garden will not be able to proceed.
The appeal by the UFC of its original lawsuit against New York filed in November 2011 is still ongoing with Paul Clement filing a brief on behalf of the UFC in early August and the state set to file its brief at the beginning of November. The lawsuit filed by the UFC today looks to be different than the appeal currently pending.
A preliminary injunction seeks equitable relief (as opposed to monetary damages) from a court prior to a final determination of the merits. A key distinction here for the UFC to get an event in New York by this spring.
In general the factors determining whether a court will grant a preliminary injunction are:
- The substantial likelihood of success on the merits of the case;
- The party seeking the injunction faces a substantial threat of irreparable damage or injury if the injunction is not granted;
- The threat is immediate;
- The balance of harms weighs in favor of the party seeking the preliminary injunction;
- There is no other available remedy;
- The grant of an injunction would serve the public interest.
Notably, MMA has seen its share of preliminary injunctions recently. Eddie Alvarez sought a preliminary injunction in a New Jersey state court case when he sought to be released from Bellator to fight in the UFC. He lost. However, as we now know, he made it to the UFC.
Bellator MMA filed a preliminary injunction in New Jersey attempting to prevent Rampage Jackson from fighting at UFC 186. The trial court granted the injunction but the state appellate court overturned the injunction and allowed Jackson to fight at UFC 186.
It’s a risky gamble by the UFC. Before the event can even happen in April, the court must grant a preliminary injunction to allow the company to hold it. Thus, the UFC could be out a lot of money. But that’s the strategy. Planning the event in April will shows there’s a “threat of irreparable damage,” it is “immediate” and “would serve the public interest.” Thus, three of the requisite 6 factors (possibly more) to grant a preliminary injunction would be satisfied. The legal strategy seems to hang on the opinion which dismissed the original lawsuit as Judge Kimba Wood seemed to entertain the argument that the statute banning professional MMA was vague but since no event actually occurred in the state, there was no harm. Judge Wood stated that Zuffa could not establish “injury in fact.” However, in what probably precipitated this new effort, Judge Wood indicated that it might have a claim based on events occurring after the filing of the November 2011 lawsuit. But, Judge Wood stated that a re-filing likely would be better if it was in state court. According to the press release, the new lawsuit is in federal court.
We have not seen the lawsuit as since it was filed today, it is still not up on Pacer. MMA Payout will keep you posted